Preventing Workplace Harassment: Five Measures Every Employer Should Take

Our California labor and employment attorneys recommend that California employers take the following five measures to prevent workplace harassment:

1. Create a written policy against harassment.
2. Communicate the policy to all employees.
3. Train supervisors on the policy.
4. Post the poster on sexual harassment created by the California Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH).
5. Distribute the CRD brochure on sexual harassment.

No California employer wants to be sued for workplace harassment (either sexual harassment or non-sexual harassment). And it is a rare California employer who condones harassment and its negative effect on employee morale. Yet complaints of sexual harassment to CRD are extremely common.

Which California employers need to take measures to prevent workplace harassment?

All of them! Anti-harassment measures like the ones our California employment attorneys recommend are not optional for businesses that want to prevent harassment complaints.

While most of California workplace discrimination law only applies to employers who employ five (5) or more persons,¹ anti-harassment rules under the California Fair Employment and Housing Act (FEHA) apply to employers of all sizes.²

This means that even if you are a very small business and only have one person working for you, you may still be liable for any on-the-job harassment experienced by that person.

In fact, California employers are liable for workplace harassment under the FEHA even if:

• The harassed person is an independent contractor, unpaid intern, or volunteer rather than an employee; or
• The person doing the harassing is a client, customer, vendor, or contractor rather than a supervisor or employee.³

This is why our California employment and harassment attorneys recommend that EVERY employer be aware of California laws and best practices on harassment–even if it may seem hard to imagine those laws actually affecting you.

Harassment Prevention Measure #1:
Draft a written harassment policy

Every California employer should have a written harassment policy. Most larger employers include this policy within their employee handbook.

The written harassment policy should contain all of the following:

1. A definition of harassment (including both “quid pro quo” harassment and “hostile work environment” harassment);
2. A statement that harassment is prohibited and that employees have a right to have any harassing or discriminatory treatment stopped immediately;
3. Information about who employees should contact if they experience harassment;
4. A statement that any harassment complaint will result in an investigation, that the investigation will be kept as confidential as possible, and that the complaining party will be informed of the results;
5. A description of disciplinary measures that may be taken against anyone who has engaged in harassment; and
6. A statement that employees complaining of harassment will not be subject to any retaliation whatsoever.

If ten percent (10%) or more of employees at a particular facility or location speak a language other than English, then the employer is required to translate the anti-harassment policy into every language which is spoken by at least ten percent of the workforce.⁴

Several additional tips about how to draft some of these sections of an employer harassment policy are:

Definition of harassment

A definition of harassment included in a written anti-harassment policy will list the personal characteristics protected by California’s anti-harassment law.

It should also specify that California law prohibits harassment by coworkers and third parties with whom the employee comes into contact as well as by supervisors/bosses.⁵

The following is an example:

“Workplace harassment is any unwelcome or unwanted conduct that denigrates or shows hostility to another person on the basis of any personal characteristic protected by law, including race, sex, religion, national origin, sexual orientation, gender identity, disability, marital status, age, and military or veteran status, among others. Sexual harassment includes unwelcome sexual advances, conduct, or comments, particularly when an employment benefit is conditioned upon providing sexual favors or entering a sexual relationship (quid pro quo harassment), or when the harassing behavior interferes with an employee’s job performance (hostile work environment harassment). Harassment may be committed by coworkers and third parties as well as by supervisors and bosses.”

Whom to contact with reports about harassment

Our California employment attorneys recommend that an employer’s written harassment policy be very clear and specific on whom employees should contact in the event that they experience harassment.

It is very important to let employees know that they may bypass a supervisor whom they believe is harassing them. Therefore, a policy should provide multiple avenues for lodging a harassment complaint.

For example, the anti-harassment policy might state that employees experiencing workplace harassment may contact any of the following:

• their supervisor,
• the human resources department,
• a complaint hotline or ombudsperson, or
• any member of management up to and including the CEO.

(In turn, all supervisors and managers need to be instructed on transmitting any harassment complaints to the appropriate person in the company, like a human resources manager.)⁶

Disciplinary measures

An anti-harassment policy should ideally describe disciplinary measures that may be taken against people who commit harassment in an open-ended way. The goal is to avoid suggesting that there is either a minimum or maximum expected penalty for workplace harassment.

For example, an employer harassment policy put in place to prevent workplace harassment might state that harassers will be subject to “appropriate disciplinary measures, up to and including termination of employment.”

No retaliation

The FEHA prohibits retaliation against employees who complain about discrimination or harassment.⁷

This is why it is of the utmost importance that policies put in place by employers to prevent workplace harassment state clearly that employees will not be subject to retaliation for complaining about harassment or participating in harassment investigations.

This portion of an anti-harassment policy should also let employees know that any allegations of retaliation will be investigated, and that appropriate disciplinary measures, up to and including termination, will be imposed on those who retaliate.

Harassment Prevention Measure #2:
Communicate the anti-harassment policy

The second important measure California employers should take to avoid workplace harassment claims is to make sure the written harassment policy is communicated to all employees.

Employees should receive the anti-harassment policy on their first day of work. Acceptable methods of distributing the policy to employees include:

1. Printing and providing a copy to all employees, possibly as part of an employee handbook;
2. Sending the harassment policy via email;
3. Posting a current version of the policy on a company intranet.⁸

Regardless of the method of distribution, employers should also require employees to sign and return an acknowledgment page, stating that they have received the anti-harassment policy. (If the policy is posted on an intranet, it should incorporate a tracking system that can track whether employees have accessed the policy and acknowledged receipt.)⁹

Finally, when an employer makes changes to its written policy on harassment, it should require employees to sign and return a new acknowledgment page stating that they have received the revised version.

Harassment Prevention Measure #3:
Train supervisors on the anti-harassment policy

Another important step that California employers should take to prevent workplace harassment complaints is to make sure that all supervisors receive training on the company’s written harassment policy.

The California Fair Employment and Housing Act actually requires that all California employers with fifty (50) or more employees provide each supervisor with at least two (2) hours of classroom or interactive online training on sexual harassment within six (6) months of hiring or promoting them to a supervisory position, and then again every two (2) years. (Companies that fail to meet this requirement will be ordered to do so by the FEHC.)¹⁰

While all California employers subject to that requirement should abide by it, our California labor and employment lawyers recommend that employers do more than the bare minimum–for example, that smaller employers also train supervisors on the anti-harassment policy, and that training be provided on forms of harassment other than sexual harassment.¹¹

Proper training of supervisors on harassment policy and prevention can be helpful to employers looking to avoid workplace harassment problems in all of the following ways:

• Helping to ensure that supervisors do not personally violate the employer’s anti-harassment policy;
• Helping supervisors recognize possible harassment situations; and
• Giving supervisors the information they need to handle harassment issues if they do arise.

The employment attorneys at Shouse Law Group recommend that employers document any and all training sessions and ask participating supervisors to verify their participation in writing.

Harassment Prevention Measure #4:
Post the CRD harassment poster in a prominent location

This step is self-explanatory and is among the simplest measures a California employer can take to prevent workplace harassment.

California CRD produces a poster entitled “California Law Prohibits Workplace Discrimination and Harassment.”

Moreover, the Fair Employment and Housing Act requires employers to post a current version of the poster in a prominent and accessible location in the workplace.¹²

Harassment Prevention Measure #5:
Distribute the CRD brochure on sexual harassment

This is another simple step toward reducing the likelihood of a California workplace harassment claim.

CRD publishes a brochure called “Sexual Harassment: The Facts About Sexual Harassment.” California employers are required by law to distribute this brochure (or an alternative brochure containing similar information that an employer creates itself) to employees.¹³

Our California labor and employment attorneys recommend that all California employers make sure that every employee receives a copy of the CRD anti-harassment brochure–for example, by distributing copies with pay stubs or W-2 tax forms.

Will taking these measure to prevent workplace harassment mean that I can avoid legal liability for harassment?

Unfortunately, California harassment law does not create any “safe haven” for employers. There is no anti-harassment measure that will guarantee that an employer will not face a CRD complaint or a successful lawsuit about sexual or other harassment in the workplace.¹⁴

But every measure taken to avoid harassment will help in the unfortunate event of a lawsuit–as will taking the right steps when an employee first complains of harassment.

If harassment is committed by a supervisor, then an employer is strictly liable and must pay damages to the individual alleging harassment even if the employer was not at fault. But in the increasingly common situation of harassment by non-supervisors, an employer will only be liable for damages if the employer was negligent.¹⁵

Also, California employment law also states that a failure to take an anti-harassment measure that is mandated by law–such as posting the CRD poster or conducting required supervisor harassment training–will NOT in and of itself lead to a finding that an employer was negligent and is liable for damages in a harassment suit.¹⁶

Call us for help . . .

For questions about how California employers can prevent workplace harassment claims under California’s Fair Employment and Housing Act, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.

We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

---

Legal References: